Darlene Garlington fka Darlene Hopson v. Derek S. Hopson (2011)

MEMORANDUM OF DECISION

On January 18, 2011, the parties appeared before the court and presented testimony and oral argument on plaintiff's Motion for Contempt dated October 5, 2010 and defendant's Motion for Order dated January 14, 2011.

The parties were married in 1985, their marriage produced two children, and they were divorced in 2001.   Their agreement provided that the defendant pay plaintiff weekly child support.   There is no dispute that defendant fully complied with this obligation.   The parties' court-ordered agreement also addressed the issue of post-majority educational support as follows:  “The Plaintiff and the Defendant recognize the importance of their children experiencing a four-year college education program.   The Plaintiff and Defendant agree to set aside a joint college fund for the benefit of the two minor children.   The parties further specifically obligate themselves to pay at least one-half of the tuition and room and board at a rate that would be required at a state college or university as of the date when each of the two minor children are of sufficient age to enter such educational program.”

The motions at issue involve the parties' son, Derek Garlington, who turned 18 in September 2010.   Derek exhibits extraordinary academic promise, as evidenced by the fact that he matriculated at Hampton University in September 2008, just prior to his 16th birthday.   The evidence presented at the hearing demonstrated that the parties do not communicate with each other, nor does Derek Garlington communicate with his father, the defendant.

Plaintiff's Motion for Contempt

Plaintiff seeks an order of contempt based on the fact that defendant has made no payments toward his son's college expenses, as required by the dissolution agreement, in spite of the fact that his son has been attending Hampton University since September 2008.   While such a failure would place most similarly situated defendants in clear contempt, the serious communication issues that exist in this matter lead the court to conclude, by a preponderance of the evidence, that defendant did not know that his son was attending college until quite recently.   As a result, the court denies plaintiff's Motion for Contempt, but finds that an arrearage exists and orders defendant to pay the arrearage to plaintiff.

Before defendant can pay the arrearage, however, there are other issues that must be resolved.   First, defendant argued that he has never received an official document from Hampton University outlining the fees and costs actually incurred by his son.   Plaintiff did provide defendant and the court with a bill that appears to have been printed off the internet, but is clearly not an official document produced by the University.   Plaintiff did not contest the fact that defendant had never received an official bill, but, rather, argued that given the fact that the parties' son had reached the age of majority, it was not within her power to allow the University to release such information to the defendant.   Regardless, defendant is entitled to official documentation of his son's college expenses.   In view of the fact that it is in the interest of all involved, including Derek Garlington, that defendant meet his obligation promptly, plaintiff is hereby ordered to take all necessary steps in order to allow the University to provide defendant with an official itemized bill detailing his son's college expenses.

The second issue raised at the hearing was the extent of defendant's obligation to pay his son's college expenses.   The parties never set up the college fund detailed in their agreement, which provides that each party will “specifically obligate themselves to pay at least one-half of the tuition and room and board at a rate that would be required at a state college or university.” ¹  “An agreement between divorced parties regarding the postmajority education of their children that is incorporated into a dissolution decree should be regarded as a contract.”  Legg v. Legg, 44 Conn.App. 303, 306 (1997), citing Barnard v. Barnard, 214 Conn. 99, 109 (1990).   The language used by the parties in this case indicates that each agreed to pay one-half of tuition, room and board after subtracting financial aid, but not loans, up to the cost of a UConn education during the same period.   See, Demers v. Demers, Docket No. FA 96–0712096, Judicial District of Hartford (October 11, 2006, Epstein, J.) [42 Conn. L. Rptr. 144].   Based on the unofficial bill entered into evidence at the hearing, it appears that the actual cost of Derek Garlington's education may prove to be less than one-half of the cost of a UConn education during the same period due to the fact that he received significant financial aid from the University.

During Derek Garlington's first year at Hampton, he received a full tuition reimbursement because plaintiff served as a member of the faculty during that period.   Plaintiff argues that defendant should not be able to factor in this benefit in determining his liability;  that it should be wholly attributable to her as if she paid that amount in tuition.   In view of the fact that the reimbursement was a benefit of plaintiff's employment rather than a scholarship or grant, the benefit of which is rightly attributable to both parties, the court concurs with plaintiff's position.   As a result, the court finds defendant should reimburse plaintiff for one-half of the tuition that was subject to the reimbursement.

Based on the foregoing, the court finds that defendant is liable for one-half his son's college expenses, including tuition, room and board, after deductions for financial aid, but not loans, up to the cost of a UConn education during the applicable period.²  He shall pay plaintiff such amounts within thirty (30) days of receiving official confirmation of his son's college expenses from the University.

Defendant's Motion for Order

Defendant argues that his child support obligation ceased when his son began college two years prior to his eighteenth birthday, having been replaced defendant's obligation to contribute to his son's college expenses.   As a result, defendant seeks a credit toward unpaid college expenses for the child support payments he made during the two-year period between September 2008, when his son matriculated at Hampton, and September 14, 2010, when his son turned eighteen.   Defendant also seeks an order awarding him attorneys fees in relation to his Motion.

In support of defendant's argument, he points to the language contained in C.G.S. § 46b–215(a)(1) which provides that “[i]f the child is unmarried and a full-time high school student, [child] support shall continue according to the parents' respective abilities, if such child is in need of support, until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first.”   Defendant argues that this language provides that the obligation to pay child support terminates whenever a child is not a full-time high school student, regardless of his or her age.   However, defendant's interpretation does not account for the first part of the subsection, which provides without qualification that a court can issue support orders for “a child under the age of eighteen.”   The language defendant cites is not a limitation on his obligation to provide support once his son graduated high school, regardless of his age, but rather serves to extend the support obligation to a full-time high school student until he or she graduates or turns nineteen, whichever occurs first:  “[I]f the child turns eighteen and is in high school the child support obligation continues until the child graduates high school or attains the age of nineteen years, whichever occurs first.   C.G.S. § 46b–215(a)(1).”   Rabano v. Rabano, Docket No. FA 08–4031826, Judicial District of New Haven at New Haven (April 13, 2010, Conway, J.).

Defendant also makes the equitable argument that requiring him to pay child support and college expenses at the same time constitutes double-dipping.   While this argument has a certain amount of facial appeal, it fails to recognize the realities of raising college-age children.   In Samsonenko v. Samsonenko, Docket No. FA 01–0075249, Judicial District of Tolland at Rockville (August 26, 2010, Klaczak, J.T.R.), the father of an academically gifted child who entered college after her sophomore year of high school sought to modify his support obligation in view of the fact that he was also paying half of her college expenses.   In denying the father's motion, the court stated, “[i]t is illogical to think that child support ends when college begins.”   The fact that defendant's son is in college does not mean that he is fully supported through tuition, room and board and the court denies defendant's request that his child support payments be credited toward his unpaid obligation to pay a portion of his son's college expenses.³  In view of the fact that defendant did not prevail on his Motion, his request for attorneys fees is hereby denied.

ORDERS

1) Plaintiff's Motion for Contempt is hereby denied.   However, the court finds defendant liable for one-half his son's college expenses, including tuition, room and board, after deductions for financial aid, but not loans, up to the cost of a UConn education during the applicable period, including credit to plaintiff for the tuition that was reimbursed.   Defendant shall reimburse plaintiff such amounts within thirty (30) days after he receives official confirmation of his son's college expenses from Hampton University.   Defendant shall make payments for the 2011–2012 academic year directly to Hampton University within thirty (30) days of receiving a bill from the University.

2) Plaintiff is hereby ordered to take all necessary steps to ensure that defendant receives an official statement of Derek Garlington's college fees and expenses from Hampton University.

3) Defendant's Motion for Order seeking a credit toward his son's college expenses for child support payments made after his son entered college is hereby denied, as is defendant's request for attorneys fees.

James W. Abrams, Judge

FOOTNOTES

FN1. Many dissolution agreements contain language limiting each parent's liability for each child's college education to the one-half of the cost of attending the University of Connecticut at the time the child attends college.   The agreement at issue uses the term “at least,” which could either refer to the fact that each party was obligated to pay at least one-half of the tuition or that each party's minimum obligation would be one-half of the cost of a UConn education.   In view of the fact that the latter interpretation would make no sense if the child's education ended up costing less than a UConn education, the court interprets the agreement to require each party to pay at least one-half of the college costs up to one-half the cost of a UConn education..  FN1. Many dissolution agreements contain language limiting each parent's liability for each child's college education to the one-half of the cost of attending the University of Connecticut at the time the child attends college.   The agreement at issue uses the term “at least,” which could either refer to the fact that each party was obligated to pay at least one-half of the tuition or that each party's minimum obligation would be one-half of the cost of a UConn education.   In view of the fact that the latter interpretation would make no sense if the child's education ended up costing less than a UConn education, the court interprets the agreement to require each party to pay at least one-half of the college costs up to one-half the cost of a UConn education.

FN2. Plaintiff provided evidence that one-half the cost of a UConn education was $16,864.00 for the 2008–2009 academic year, $17,707.00 for the 2009–2010 academic year, and $18,831.00 for the 2010–2011 academic year..  FN2. Plaintiff provided evidence that one-half the cost of a UConn education was $16,864.00 for the 2008–2009 academic year, $17,707.00 for the 2009–2010 academic year, and $18,831.00 for the 2010–2011 academic year.

FN3. Defendant's equitable argument is further undercut by the fact that this period of double payment does not serve to increase defendant's overall support obligation as his duty to pay a portion of his son's college expenses will terminate two years earlier than it would have had his son remained in high school until the age of 18 and then gone to college.   A ruling in defendant's favor would have relieved him of the obligation to pay two years of child support which he would have had to pay under ordinary circumstances and Derek Garlington's academic precocity would have resulted in a windfall to defendant..  FN3. Defendant's equitable argument is further undercut by the fact that this period of double payment does not serve to increase defendant's overall support obligation as his duty to pay a portion of his son's college expenses will terminate two years earlier than it would have had his son remained in high school until the age of 18 and then gone to college.   A ruling in defendant's favor would have relieved him of the obligation to pay two years of child support which he would have had to pay under ordinary circumstances and Derek Garlington's academic precocity would have resulted in a windfall to defendant.

Abrams, James W., J.